STATE Vs. YOUSSUF DAR

JUDGEMENT

(1.) THIS is an appeal from the judgment and order dated September 19. 1970 of the learned Additional Sessions Judge. Srinagar, acquitting the respondents of the charges under Sections 302, 380 of the Ranbir Penal Code read with Section 149 of the Code and Sections 366/376 read with Section 34 of the Code.

(2.) THE prosecution case was that equipped with arms and ammunition and posing themselves as Mujahids (liberators) and officers belonging to the Pakistan army, the respondents, roamed about in Ghak Paharu. Tehsil Chadura. in the summer of 1967 raising subscriptions and enlisting support. During the course of their activities they established contact with Rehman Butt deceased. the resident son-in-law (Khanina Damad) of Ramzan Sheikh, the father of Habib Sheikh informant. Their familiarity with the deceased grew in course of time and developed to such an extent that they started frequenting the house of the_ latter, deposited their arms and ammunition in his house, and one of them namely Yousuf Dar alias Chilki who belonged to Inder-kot, Tehsil Sonawari. actually started residing in his house. On the night intervening 29th and 30th October. 1967, when the first informant had gone to his In-laws house in village Khudpura, illaqa Badgam and his mother Mst. Tali a, P. W. 16. was asleed in her room on the first floor, Youssuf Dar and other respondents entered the room (on the ground floor of the house) occupied by Rehman Butt and his wife, Mst. Raia, P. W. 6. and overwhelmed and over-powered Rehman. Butt who was asleep stark naked in his bed along with his wife. Mst. Raja, and his minor child, Bashir, The movements of the respondents awakened Mst. Raja who in the light of "batti" which was burning in the Takcha (niche) saw her husband Rehman Butt, in the grips of the respondents on the floor of the room. She was-immediately gagged with a muffler and removed to "pacharbandi" (i. e wooden partition) of the room by Mohamad Dar respondent who held her there with her hands tied backwards. Hussain Dar and Nund Mir respondents sat on the legs of Rehman Butt and Quasim- Wani respondent punctured his throat with knife Ex. PB. Thereafter Yussuf whipped out "churri" Ex. PA and cut the throat of Rehman Butt who died instantaneously. Hussain, Mohamad, and Nunda Mir put the dead body of Rehman Butt in a gunny bag and Qasim and Yusuf went to the first floor of the house and collected all the valuables including some ornaments and clothes and handed them over to Mohamad Dar who wrapped them in his "chaddar Patti. " Hussain then picked up the child. Yusuf Dar lifted the dead body, and Nund Mir carried the valuables and forcibly taking away Mst. Raja all the respondents proceeded towards Batangana where Hussain and Nund Mir buried the dead body of Rehman Butt in the field belonging to Mahda Dar and after covering a small distance had themselves ferried across the river Jhelum by Rehman Karnai. P. W. 10, whom they told that the woman accompanying them' was their daughter-in-alw who had run: away. After crossing the river the respon dents went to Batwara where they hired a taxi telling the same story to the Taxi Walla and had themselves driven to a place which was three or four miles beyond Ganderbal. Crossing some fields Nullahas-and Khuds. the respondents reached the house of Qasim respondent in village Dab. where Mst. Raja was detained for a month during the course of which all the respondents excepting Qasim used to have illicit intercourse with her. After a month Mst. Raja was removed by Yusuf and Qasim respondents to Inderkot where they stayed for seven days in the house of Yusuf Dar respondent. From Inderkot Mst. Raja was taken by Qasim. Yussuf, and Ibrahim Chilki, the father of Yussuf, in a bus to Lolab. From there she was taken to the ho-use of AH Bhat, father-in-law of Assad War, P. W. 5. in Dharam Wari where Ibrahim Chilki also stayed for 7/8 days. At Ali Butt's house at Dharam Wari Yussuf Chilki respondent stayed for two months during the course of which he kept on having illicit intercourse with Mst. Raja. During all this time Mst. Raja was threatened not to make any disclosure to any one. One day while Yussuf was out. two beggars came to the house of Ali Butt to whom Mst. Raja narrated1 her woeful tale and implored them to liberate her. When the beggars were to depart. Yussuf Chilki returned to the house in the evening. The sight of the beggars roused suspicion in the mind of Yussuf Chilki and again threatening to kill Mst. Raja, he removed her in a bus to Inderkot where all the five respondents held consultations. They offered to give Mst Raja in marriage to Haider Chilki P. W. 19 in lieu of Rs. 1000/-and on his declining the offer for want of money, Yussuf Chilki gave Rs. 200/- to each one of the respondents telling them that he would himself marry Mst. Raja. . On the 4th or 5th of February, 1968. Yussuf Chilki and Haider Chilki took Mst Raja to Sopore where they got an agreement and an affidavit evidencing the marriage of Mst. Raja with Yussuf Chilki written by Balbadar Pandit Petition Writer P. W. 11. on which they got Mst. Raja's thumb impression. After getting the documents completed they brought back Mst, Raja to Inderkot, On the 1st of March 1968. Shri Zahoor Hussain S. I. S. H. O. Police Station Sumbal, Sonawari. P. W. 17 raided the house of Yussuf respondent at the instance of the S. H. O. Police Station Sadder. Srinagar and recovered Mst. Raja who narrated the entire story to the Sub-Inspector. On hearing her tale Shri Zahoor Hussain apprehended Yussuf Chilki under Section 54 of the Code of Criminal Procedure and whisked him off as well as Mst. Raja to the police station. He also arrested Nund Mir and Hussain respondents on the 2nd and 3rd of March, 1968. respectively.

(3.) MEANWHILE on getting up from her bed on the morning of 30th October, 1967. Mst. Tajja P. W. went to the room occupied by her daughter. Mst. Raja, and the deceased and finding the room vacant, she thought that Mst. Raja must have been taken to the hospital for treatment by her husband as she had been bleeding profusely on account of misear-raige. Her hunch was strengthened on account of the presence of bloodstains on the mattress, quilt, and a bag which she islced her daughter Fata to wash and put in the sun to dry. She also told her brothers that Mst. Raja had left with her husband and child for some place on account of her ailment. Her brothers namely Abdullah Khan. Mahada Khan and Assad Khan, started a search for State vs. Youssuf Dar and Ors. (11. 09. 1972 -JKHC) Page 4 of 15 (11. 09. 1972 -JKHC) Page 4 of 15 Mst. Raja, her husband and child and deputed Mahda Sheikh to go and fetch his cousin, Habib Sheikh, the son of Mst. Tajja. from his in-Laws' house at Khudpura. On his return on 2nd of November, 1967 from Khudpura, Habib Sheikh was informed by his mother that the deceased and Mst. Raja had gone to the hospital on the morning of the 30th October, 1967 and had not returned since then. Accompanied by Abdul Samad Khan, Ghulam Mohammad Ward and Sultan Sheikh Habib Sheikh went in quest of the deceased and Mst. Raja to the hospitals at Srinagar and Pampore and not finding them there, he lodged report Ex. P 13 about their and their son, Bashir's "gumshudgi" at the police station Saddar, Srinagar, on 4th of November, 1967, at about 10 A. M. He had hardly finished lodging the report when Jaffar Mir Ghowkidlar P. W. 2 turned up at the police station and lodged report Ex. P 1 to the effect that he had seen a dead body in the field of Mahda Dar. On receipt of Ex. P 1 Habib Ullah S. H. O. Police Station Saddar. Srinagar repaired to Rakhshalliana, and saw that the field of Mahda Dar son of Hassan Dar. had been freshly cultivated. He recovered the dead body from there vide Ex. PE which was identified to be of Rehman Butt, son-in-law of Ramzan Sheikh, about whose. "maphqud-ul-Kha-bari" report Ex. P 13 had been received. He prepared the inquest report Ex. P 8 and injury statement Ex. P 1 of the deceased, seized blood stained knife Ex. PA. which was lying near the head of the deceased as also a gunny bag which bore some stains of blood from the field of Qasim Mir son of Jaffar Mir vide Ex. P. 3 and Ex. P. 14 respectively and sent the dead body for post-mortem examination to the hospital at Srinagar. where, Dr. Ghulam Mohammad Dar. P. W. 13 District Medical Officer, Srinagar performed the autopsy on the 5th of November 1967. On post-mortem examination the doctor found the following injuries on the dead body: